A Navy lawyer looks to a cartoon by the late Pulitzer Prize-winner Jeft MacNelly to help demystify how operators should interpret the rules of engagement.
What's wrong with this picture? While always good for a few laughs from wardroom or ready room, this editorial cartoon encapsulates the prevailing state of operator misunderstanding, confusion, and frustration over the application of fundamental rules of engagement (ROE) concepts. Most ROE trainers—operator and lawyer alike—miss the point entirely. Instead of being helpful to them, it likely has the opposite, albeit unintended, effect. Properly understood and applied, the cartoon has enormous potential as an ROE training aid.
The Rules of Engagement
The Standing Rules of Engagement (SROE) for U.S. forces are the foundation of the use-of-force policy implemented by the Department of Defense to keep positive control over the employment of military force consistent with national, strategic, and operational policy. They are designed to prevent unauthorized or premature combat escalation and to ensure that only senior civilian and military leaders decide if and when the nation will employ its military capabilities. As "standing" rules, they apply worldwide to all U.S. armed forces engaged in military activities across the entire operational range, from peace, through military operations other than war, to full armed conflict.
Admittedly a difficult read and not operator userfriendly, in practice the SROE are really quite simple. They authorize the employment of military force under only two circumstances: self-defense and mission accomplishment. If the circumstance is neither of these, there is no legal authority to use military force.
To the layman, the concept of self-defense involves some imprecise notion of a right or equitable justification for the use of force to defend oneself, one's property, or a close relative. Similarly, the SROE define self-defense as the:
commander's inherent authority and obligation to use all necessary means and take any appropriate action to defend his unit and any U.S. military unit in the immediate vicinity from a hostile act or demonstrated hostile intent which constitutes an imminent threat.
Several key points should be kept in mind:
* Self-defense extends to the unit, the individual, and other applicable U.S. units "in the immediate vicinity."
* These measures are "inherent." That means they are always in effect, regardless of unit or individual location or activity.
* They require no additional implementing measures, authorization, or other permission. If it helps, think of the words "self-defense" tattooed onto your backside. Permanent, out of sight, and out of mind, but always with you wherever you go or whatever you do.
* Self-defense measures may not and cannot be restricted. Transcending both civilian and military authority, the right of self-defense flows from our nation's sovereign status and predates the SROE. Rather than granting the self-defense right and obligation, the SROE merely restate and emphasize a principle of international law. This principle is often restated in secondary ROE sources as such.
* Unit and individual employment of military force in self-defense is both authorized and obligated. The authority provides the right but not necessarily the requirement to use military force-a subtle but important distinction. Added to the SROE after the USS Stark (FFG-31) incident, the obligation element provides accountability up to and including possible punishment under the Uniform Code of Military justice.
* The exact nature and type of military force to be employed in self-defense are not further defined or specified by the SROE. Instead, unit commanders and individuals are permitted to use "all necessary means and take any appropriate action" in self-defense, limited only by the international law concepts of "necessity" and "proportionality."
* Self-defense measures are authorized only in response to a "hostile act" or "demonstrated hostile intent." The issue is what constitutes a hostile act or demonstrated hostile intent.
Hostile Act / Hostile Intent
Former Chief of Naval Operations Admiral Frank Kelso once stated, "[T]he determination of hostile intent is the single most difficult decision that a commander has to make during peacetime." If true, this is unfortunate. It is perhaps more accurate to observe that we, lawyer and operator alike, have unnecessarily made the commander's determination of "hostile act/hostile intent" his or her most difficult decision. Why? The reasons are many, but the main culprit likely is the recent trend of divorcing the issue from tactics and doctrine and morphing it into some sort of purely theoretical legal concept. Whatever the reason, deck-plate operators tend to expend a lot of needlessly wasteful and potentially fatal time and effort wrapping themselves around the axle trying to apply these concepts correctly. It is time to unwrap the axle.
The first step is to forget legal definitions and return the discussion to the basics: tactics and doctrine. Self-defense, as a whole, is nothing more than force protection. From this perspective, the analysis is purely one of threat assessment: a process that should be well within the unit commander's training, expertise, and comfort zone. Accordingly, rather than separate and distinct "legal" concepts, hostile acts and demonstrated hostile intent are best thought of as threat gradients.
The easier of the two concepts, a hostile act is a realized threat: an attack. Nothing clarifies the self-defense picture better than a punch in the nose. This, of course, does not require either the unit or the individual to absorb the "first hit." An inbound missile off the rail or being shot at suffices as an attack. The more difficult concept is the determination of action short of attack but sufficient to require employment of military force, i.e., "demonstrated hostile intent."
Demonstrated hostile intent is an imminent threat short of an attack but sufficient to require the use of military force to defend the unit or individual. Note the word "demonstrated." When discussing self-defense or analyzing the threat, insist on proper terminology: "demonstrated hostile intent" as opposed to mere "hostile intent." There is no authority to use military force against a potential adversary based merely on his or her intent alone. In other words, do not fixate on what the potential adversary might be subjectively thinking-a lot of people dislike us, want to do us harm, or want to make us go away. Focus instead on what the potential adversary is objectively doing, or more important, what he or she is capable of doing.
The art, of course, is in assessing the threat accurately. Important relevant elements include objective(s), guidance, experience, training, tactics, doctrine, intelligence, capabilities (both your own and those of your potential adversary), and situational circumstances, including geopolitical, historical, and cultural factors. Note the absence of any legal analysis in the threat assessment process.
The "legal" part comes into play during post-threat assessment, and it is twofold. First, the presence of an assessed actual or imminent threat provides the legal justification to respond with military force (concept of necessity). second, the nature of the threat as well as unit or individual response capabilities limit both the nature and duration of the response options (concept of proportionality).
If you think of unit or individual warfighting capabilities (speed, weapons, maneuverability, etc.) as tools, all the tools in the box are potentially available for self-defense response. just as the job drives the tool(s) required, the threat drives both the nature and duration of response options. While you may use any tool in your box (except, of course, nuclear, biological, and chemical weapons) to respond decisively to an assessed actual or imminent threat, you do not always need to employ the hammer when a few well-placed turns of the screwdriver will do. Once the threat is effectively prevented, reduced, or neutralized, your legal authority ceases, and you must stop turning the screw.
Threat response options are not exclusively platform weapons capabilities. Communications can be effective means to clarify a potential demonstrated hostile intent picture, and maneuvering out of a threat envelope is a valid, non-lethal, and often prudent threat reduction or neutralization option.
Mission Accomplishment Measures
The other half of the SROE are mission accomplishment measures, also known as supplemental measures, which are situational-specific rules either permitting or restricting the nature and duration of military force authorized to accomplish assigned missions or tasks. These mission accomplishment measures, usually promulgated by secondary sources, are what most people think about when they use the term ROE.
It works the following way: A specific mission is assigned-"conduct maritime interception operations against Badguyland shipping." This mission may or may not be accompanied by mission-specific supplemental measures either authorizing or restricting the use of force to accomplish the mission. Examples include "entry into Badguyland territorial seas is authorized" and "entry in to Badguyland internal waters, land territory, or national airspace is not permitted." This is the same toolbox carried through the self-defense analysis, only supplemental measures provide additional legal justification for their use.
It is important to note that circumstance-specific mission accomplishment measures may or may not be in effect. Generally, large theaters and ongoing or preplanned operations likely will have implemented mission accomplishment measures promulgated through secondary sources.
Mission accomplishment measures are independent of self-defense measures. They serve a separate, distinct, and complementary purpose: to permit or restrict military force used to accomplish assigned missions or tasks. Think of two railroad tracks-parallel, mutually supporting, but never crossing.
Both self-defense and mission accomplishment can be summarized with something called the ROE-Z. Rule Number One: The SROE authorize the use of military force only under two circumstances: self-defense and mission accomplishment. Rule Number Two: Use of military force in self-defense is authorized only in response to threats constituting a hostile act or demonstrated hostile intent. Rule Number Three: Mission accomplishment measures, if any, are limited in scope to assigned missions and tasks. Rule Number Four: Mission accomplishment measures do not and cannot replace or restrict self-defense measures.
ROE Training Aid
Reexamining the cartoon, we see the obviously outlandish (and humiliating) aftermath of a mounted saber attack on a U.S. tactical aircraft while the assailant beats a hasty but prudent retreat into the desert. The aircraft commander is apparently confused over his response options and asks his radar intercept officer for the "rules of engagement." This is likely a request for a copy of an ROE kneeboard card summary of mission accomplishment "supplemental" measures in effect, if any. To the layman and untrained operator, this appears to be a reasoned response by a responsible U.S. war fighter. To the properly trained tactical operator well versed in his or her understanding of fundamental ROE, the aircraft commander's request under the circumstances is absurd. To the operational commander, this picture conveys his or her worst nightmare—an untrained, unprepared tactical unit commander at the pointed end of the lance, who just took the "first hit" while he fumbled for a pub.
The potentially fatal consequences of the aircraft commander's predicament are obvious. The increase of speed and the compression of time that characterize operations in today's battle space simply do not afford the tactical operator the luxury of consulting either the SROE or promulgated supplemental measures. The basics of the SROE, measures authorized for self-defense and mission accomplishment, must be taught, trained, and practiced as an ingrained ethic, not a theater-specific overlay or "work-around."
The situational circumstance of our hapless tactical aircraft crewmembers is unknown but at the same time equally irrelevant for our training purposes. This is true because separate analyses should lead to the same desired results. Assume the aircraft is operating in an environment without implemented supplemental measures often promulgated during routine forward-deployed presence operations. Without mission accomplishment measures authorizing the use of military force, the aircraft commander is, regardless of circumstances, still holding his SROE self-defense measures.
Unit threat assessment is easy in this scenario. There can be no doubt that the severing of the aircraft's nose constitutes an attack or a legally sufficient hostile act. What happened immediately before the attack is the more interesting topic. Obviously, the aircraft commander proved incapable of or unable to assess and respond to the initial imminent threat (demonstrated hostile intent), since he has come under attack and taken the first hit.
Having taken the first hit, he may be seeking the ROE to determine his authority to employ self-defense measures against a now-retreating force. Again, the right to employ self-defensive measures subsequent to a hostile act against a disengaged force that maintains the capability to reengage is something that needs to be ingrained and almost reflexive; not something subject to on-the-job training.
Assuming the aircraft is operating in a theater of war and mission accomplishment measures are in effect, at best mission accomplishment measures will authorize the use of military force to engage and kill designated hostile forces. As such, the aircraft commander does not have an ROE problem but rather a combat identification problem. Implemented mission accomplishment measures, regardless of format, are likely to be of little value to our beleaguered aircraft commander.
Assuming that, despite his capabilities, our aircraft commander was simply unable to distinguish friend from foe—which, unfortunately, is common in today's operational environments—under these circumstances, any mission accomplishment measures authorizing the use of military force against lawful targets are negated. All, however, is not lost. The mere inability to use military force to accomplish an assigned task may result in a scrubbed or aborted mission, but it does not leave the individual or unit vulnerable to attack from assessed threats. Even casting aside, in effect, all his mission accomplishment measures, the aircraft commander always retains his SROE self-defense measures to defend his aircraft. In this light, the aircraft commander's post-attack, pre-response request to review the ROE demonstrates a clear misunderstanding of basic SROE concepts and their application in the operational environment.
The reasons for this misunderstanding are likely two-fold. First, it may result from inadequate training and follow-on ready room tactics and doctrine tie-in discussions. SROE basic principles need to be known and practiced instinctively.
The second and more likely cause of this confusion is the aircraft commander's not-uncommon failure to distinguish and differentiate between self-defense and mission accomplishment measures. This usually manifests itself in the operator's (wrongful) belief that the right of self-defense is somehow displaced or replaced by mission-specific measures. The other side of the same coin is the operator's equally mistaken belief that the lack of such an affirmative, permissive mission accomplishment measure, expressly authorizing self-defense, equates to a prohibition. We do this to ourselves when operational commanders adopt supplemental measures purporting the authorization of self-defensive measures, continue in the practice of promulgating affirmative, permissive supplemental measures for mission accomplishment, and fail to segregate self-defense and mission accomplishment supplemental measures in secondary sources, such as operational taskings, special instructions, ROE cards, etc.
A Lesson Learned
Master this cartoon and you have mastered the fundamentals of our standing rules of engagement. Use it to prompt meaningful wardroom or ready room discussion by asking, "What's wrong with this picture?" Anyone trained properly in the basics should have no problem explaining the aircraft commander's futility in consulting the "ROE" in responding to the attack. Discussion also should touch on important factors of operational environmental, strategic, and operational objectives, force protection, combat identification, unit capabilities, response options against disengaging forces, and nonlethal response options.
Those who focus on the aircraft commander's mindset, acknowledge similar confusion, and recognize the potentially fatal disadvantages of being on mission untrained and unprepared score extra points. If they fail to recognize these shortfalls, your ROE training program has failed. And if your ROE program fails, your operators fail. When they fail, people die. It is that simple.
So, what is wrong with this picture? Nothing, after all. This picture is worth a thousand words.
Commander Palmer is executive officer, Trial Service Office Pacific, Pearl Harbor, Hawaii. Having served in the Navy legal services field from Adak, Alaska, to Mayport, Florida, he is admitted to practice before the Supreme judicial Court for the Commonwealth of Massachusetts, the U.S. District Court for the District of Massachusetts, the U.S. First Circuit Court of Appeals, the U.S. Claims Court, and the U.S. Court of Appeals for the Armed Forces.